The hijab case and the essential practices doctrine

Source: The post is based on the article “The hijab case and the essential practices doctrine” published in The Hindu on 20th September 2022.

Syllabus: GS – 2 – Indian Constitution — features, amendments, significant provisions.

Relevance: Supreme Court and religious practices.

News: The Supreme Court of India is presently hearing arguments on the correctness of a Karnataka High Court judgment that upheld the ban on the use of the hijab by students in Karnataka.

What are the decisions of the Karnataka High Court on the Hijab ban?

The Karnataka High Court made three primary findings in its judgment.

1) The use of a hijab is not essential to the practice of Islam. Thus, the right to freedom of religion was not violated, 2) There exists no substantive right to freedom of expression or privacy inside a classroom. This is because the court believed classrooms are “qualified public spaces” where individual rights must give way to the interests of “general discipline and decorum”, 3) The ban did not come directly out of the government’s order(GO). The GO only called for a uniform dress code to be prescribed by the State or school management committees. Hence, the law did not discriminate, either directly or indirectly, against Muslim students.

Read more: Hijab not an essential practice of Islam, rules Karnataka High Court
What are the questions before SC on the hijab ban?

a) Whether Muslim women have been discriminated against the ban or not, b) Whether the right to freedom of expression exists within the educational institution or not. If the court confirms that freedom of expression exists within the educational institution then the onus shifts to the State to show that the ban is proportionate and legitimate.

A reversal of any of the three findings made by the High Court ought to result in a nullification of the ban.

Must read: Karnataka High Court Judgment on Hijab – Explained, pointwise
Can the state intervene in matters connected to religion?

B.R. Ambedkar in the Constituent Assembly said, “The religious conceptions in this country are so vast that they cover every aspect of life….. It is not necessary that… laws relating to tenancy or laws relating to succession, should be governed by religion.” In short, he said that the state should be allowed to intervene in matters that are connected to religion but are not intrinsically religious.

In a series of cases, the Court determined whether a practice which was religious in nature was also “essential” to that religion. At present, the state also lawfully interferes in the interests of social welfare and reform and courts provide constitutional protection to such laws and regulations.

Read more: The head and heart of secularism
What are the outcomes of the court’s interference in religion?

Over time the Court narrowed the extent of safeguards available to religious customs by directly encroaching on the autonomy of religious groups. This is considered as a violation of the right to ethical independence.

Sometimes, the court restricts social justice legislations of government as they are encroachment on religion. For example, in 1962, the Court struck down a Bombay law that prohibited excommunications made by the Dai of the Dawoodi Bohra community

For now, any Court hearing a matter touching upon a matter of faith has the task of acting not merely as an expert on law but also as an expert on religion.

Read more: Education should be priority, not banning of hijab
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